NLRB Decision Approves Union Petition to Cherry-Pick a Single Job Classification for Organization

September 2011

By a 3-1 vote, the National Labor Relations Board (NLRB) overruled a 20 year-old precedent and cleared the way for unions to organize a small subset (or “micro-unit”) of an employer’s workforce, as narrow as a single job classification. (Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB No. 83). For wholesaler-distributors and other private sector employers under the NLRB’s jurisdiction, this means you could have separate unions—and different, even conflicting, labor agreements and work rules—for your office clerical staff, your customer services representatives, your drivers, your forklift operators, your order pickers, your service technicians, etc. This potential proliferation of unions and contracts brings a loss of operational flexibility and multiple risks of labor unrest and strikes. With this decision the threat of fractional organization of the workforce is real. Having gained access to the workplace by representing a micro-unit, union expansion efforts in the facility are a certainty.

The case involved a United Steelworkers local union petition to represent 53 full- and part-time certified nursing assistants (CNAs) at an Alabama nursing home. The employer objected to petitioned-for bargaining unit, arguing that the “appropriate” bargaining unit under the National Labor Relations Act (Act) should also include 33 additional service and maintenance employees (cooks, dietary aides and clerical workers) that worked in the same facility and were covered by the same employee handbook, performance appraisal system and employee benefits programs as the CNA’s.

The Board’s decision declares the union-proposed unit of 53 CNAs as appropriate under the Act, thus allowing the employees in a single job classification to vote on union representation. Under this new legal standard, an employer opposing the union-proposed unit as inappropriate because it excludes certain employees bears a heightened burden of convincing the Board that excluded employees share an “overwhelming community of interest” with the included employees.

As noted by dissenting Board member Brian Hayes, this new standard will “make it virtually impossible for a party opposing [a micro-unit] to prove that any excluded employees should be included.” Member Hayes also notes that the Board’s new test obviously encourages unions to engage in incremental organizing in the smallest employee units possible. The Board majority overruled precedent “for the purely ideological purpose of reversing the decades-old decline in union density in the private American workforce,” according to Member Hayes. Finally, the Board’s decision appears to be in direct conflict with a 1995 U.S. court of appeals decision from the Fourth Circuit.